fact that a plan covers a certain service does not guarantee that it will pay for
it, since benefits administrators have broad discretion to determine whether
care is “medically necessary” in specific instances. 80 Finally, plans may
change the way they interpret and apply their coverage policies. 81 In short,
there is no way to predict whether claimants will be insured for the future
care that they will require.
These considerations recently led a California court in an unpublished
opinion to reject a hospital defendants’ argument that compensation for fu-
ture medical expenses should be reduced because the malpractice claimant
was currently insured:
The mere possibility that private insurance coverage will continue, and the
availability of government programs for the purchase of insurance, do not,
in themselves, constitute relevant, admissible evidence of the future insur-
ance benefits that a plaintiff is reasonably certain to receive. To show the
amount of future insurance coverage that is reasonably certain, the evi-
dence would have to: ( 1) link particular coverage and coverage amounts to
particular items of care and treatment in the life care plan, ( 2) present a
reasonable basis on which to believe that this particular plaintiff is reason-
ably certain to have that coverage, and ( 3) provide a basis on which to
calculate with reasonable certainty the time period such coverage will ex-
ist. The Hospital made no such foundational showing in the trial court, and
on appeal appears to assume that even the most nonspecific evidence of
future insurance, such as its availability through governmental programs,
is admissible. Such evidence, standing alone, is irrelevant to prove reason-
ably certain insurance coverage as a potential offset against future dam-
ages, because it has no tendency in reason to prove that specific items of
future care and treatment will be covered, the amount of that coverage, or
the duration of that coverage. 82
Proponents of the MOOPL approach, such as Mark Yagerman and Max
Bookman, in fact have conceded the unpredictability of future insurance coverage:
included in the EHB [Essential Health Benefits]? A: Yes.”); see also Yagerman & Bookman,
supra note 20 (“[O]ther expenses, such as continuous physical therapy and occupational therapy, are often capped by most health insurance plans at a certain number of visits. These are
known as ‘frequency issues’ by insurers. Life care plans often project extensive numbers of
such visits, which often go beyond the frequency cap of even the highest quality health insurance policies. Therefore, to the extent that a plaintiff’s health insurance contains a frequency
cap, those non-covered expenses projected by the life plan will remain out-of-pocket.”).
80.Se e Michael Bihari, Medical Necessity, ABOUT HEALTH, http://healthinsur-ance.about.com/od/healthinsurancetermsm/g/medical_necessity_definition.htm (last updated
Dec. 15, 2014).
81. See McCarthy, supra note 27.
82. Leung v. Verdugo Hills Hosp., No. B204908, 2013 WL 221654, at 12 (Cal. App. 2d
Dist. Jan. 22, 2013).